"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, — 'I see no probability of the British invading us;' but he will say to you, 'Be silent: I see it, if you don't.'

"The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."

- Abraham Lincoln, letter to William H. Herndon, Feb. 15, 1848 (Herndon, Lincoln's law partner, had written him arguing that the president as commander-in-chief possessed the right to initiate a war against Mexico without specific Congressional authorization)

"But the life of a tall, gangly, self-made Springfield lawyer tells us that a different future is possible. He tells us that there is power in words. He tells us that there is power in conviction. That beneath all the differences of race and region, faith and station, we are one people. He tells us that there is power in hope.

"As Lincoln organized the forces arrayed against slavery, he was heard to say: 'Of strange, discordant, and even hostile elements, we gathered from the four winds, and formed and fought to battle through.'…

"I want us to take up the unfinished business of perfecting our union, and building a better America. And if you will join me in this improbable quest, if you feel destiny calling, and see as I see, a future of endless possibility stretching before us; if you sense, as I sense, that the time is now to shake off our slumber, and slough off our fear, and make good on the debt we owe past and future generations, then I'm ready to take up the cause, and march with you, and work with you. Together, starting today, let us finish the work that needs to be done, and usher in a new birth of freedom on this Earth."

- Sen Barack Obama, evokes the memory of Abraham Lincoln in announcing his candidacy for the presidency, in a speech in Springfield, IL, Feb. 10, 2007. Watch the whole speech here.

Abraham Lincoln was born 198 years ago today. A recent issue of The Atlanticranks Abraham Lincoln as the most important American since the nation's founding. Among America's other presidents, only Washington and FDR get prominent mention. This assessment must be right not only because of Lincoln's importance to America, but because of his world-historical role, to evoke the Hegelian measure. As Lincoln came to the helm, the very concept of democratic government was in peril. At Gettysburg he spoke immortal words of a "high resolve" that "government of the people, by the people, for the people, shall not perish from the earth." These words are seen by many as a rhetorical flourish, but there is a deeper truth to them than most suppose. As Francis Lieber – one of the handful of European ex-revolutionaries who gathered around Lincoln - noted, this planet possessed a sole democracy that merited the name, and that was the United States. True, Europe had its enlightened monarchies, and in Switzerland there was a colorable democracy – but only one significant nation stood for freedom and a genuine democratic franchise, and that was the United States. Moreover, the challenge raised by the South was a mortal one, not only to the Union, but also to its most fundamental values, starting with human dignity, namely recognizing the humanity of those whom the Constitution shamefully called 3/5 persons. Lincoln's success in upholding the Union reinvigorated the notion of democracy, and must be attached to its resurgence globally in the second half of the 19th century. Lincoln thus rekindled a torch that had faltered soon after the revolution.

In the last six years, the noble legacy of America's greatest president has been used shamefully by the advocates of the new politics of American Empire. These folks have no real affection for Lincoln. Following the Straussian program, they seek to recraft American history and the legacy of American leaders to fit their own agenda. Hence, they have crafted a vision of a dark new Lincoln, a man intoxicated by the power of his office, who swept aside civil liberties and took great liberties with the Constitution in the exercise of his war powers. In sum, they have captured, and sought to glamorize, what may be the darkest and most doubtful elements of an indisputably great man. In truth there are many unsettling things that were done with a sense of urgent necessity in the course of the Civil War; things which seem difficult to reconcile with the vision of the man from Springfield. But it's plain first that the necessity claimed was legitimate and second that Lincoln was not happy in doing these things, that he did not seek to craft some new imperial order. Moreover, the hallmark of Lincoln's contribution to this war effort was a vision of humanity and justice, a repudiation of cruelty, and a denunciation of the use of military necessity as a doctrinal justification for excesses (all of which repose in his General Order No. 100 of April 23, 1863, the seminal document of international humanitarian law).

Lincoln was by most accounts a man of great modesty. As Frederick Douglass wrote, he was "[t]he first great man that I talked with in the United States freely who in no single instance reminded me of the difference between himself and myself, of the difference of color." He had no lasting interest in crafting an all-powerful presidency. He respected the balance-of-power system put in place by the Founding Fathers. And he was particularly suspect of the presidential claim to unchecked war-making power (see above).

So against the dark Lincoln who appears in nearly every issue of the Weekly Standard, the Claremont Review of Books and the other laboratory publications of the Neocon movement, let us set the Lincoln of the '40s and '50s: a man sure of the Constitutional order, filled with hope and confident of a new America filled with a greater measure of justice and equality. This is my Lincoln. And this is the vision of Lincoln that emerges from Barack Obama's amazing Springfield, IL speech. I am not often impressed with political speeches. But I am impressed with this one.

(No, this does not constitute an endorsement of Barack Obama or the Democratic Party. Not yet, anyway.)

A big reason Lincoln is so lionized is that he never had to deal with the fallout of his Civil War policies in the aftermath of the war. His assasination at his high point on the cusp of victory explains much of the Lincoln worship.

Horton's point that Lincoln's policies were born of necessity and that Lincoln never sought to craft an imperial Presidency, etc. is only possible because of the assassination. But, Lincoln never had to deal with the aftermath of the policies. Lincoln never had a chance to become "imperial", since Horton has already defined what Lincoln did during his life as necessary. Mighty convenient formulation.

A big reason Lincoln is so lionized is that he never had to deal with the fallout of his Civil War policies in the aftermath of the war. His assasination at his high point on the cusp of victory explains much of the Lincoln worship.

I'm not sure what "fallout" you mean, nor to which policies you refer. But I think much of the worship of Lincoln stems from his soaring rhetoric in speeches like Gettysburg and the Second Inaugural -- speeches that I personally can't read without tears -- and our understanding that he undertook an extraordinary task and saw it through to a new birth of freedom.

Lincoln never had a chance to become "imperial", since Horton has already defined what Lincoln did during his life as necessary.

Less a definition and more a description, in my view. That's not to say that every act Lincoln took was "necessary", but that in general the dire situation required measures which can't be justified in lesser emergencies. That hardly seems controversial.

Mr. Horton doesn't seem to be talking about the historical figure I have studied, the one who counselled that Supreme Court opinions bind only the actual litigants, who suspended habeas corpus, who ignored orders from Supreme Court justices, who confiscated rebel property, whose secretary of state secretly gave money to the governor of Indiana when the legislature attempted to bring the troops home by cutting funding, etc. etc. As for Barack Obama, if there is anything more tiring than politicians comparing themselves to Lincoln, I don't know what it is offhand. Maybe politicians going to church, but it's a close call.

In the last six years, the noble legacy of America's greatest president has been used shamefully by the advocates of the new politics of American Empire.

Starting off with a slander is not usually the best means of making a meaningful historical comparison. What "American Empire?" It does not appear that the elected Iraqi government, which does not appear to do much of anything we want, realizes that they are part of Mr. Bush's imperium.

These folks have no real affection for Lincoln. Following the Straussian program, they seek to recraft American history and the legacy of American leaders to fit their own agenda. Hence, they have crafted a vision of a dark new Lincoln, a man intoxicated by the power of his office, who swept aside civil liberties and took great liberties with the Constitution in the exercise of his war powers.

Huh?

Perhaps Mr. Horton would grace us with a quote from those who note that Lincoln took far greater liberties with the Constitution than Mr. Bush ever imagined which crafted a vision of a dark new Lincoln, a man intoxicated by the power of his office, who swept aside civil liberties and took great liberties with the Constitution in the exercise of his war powers.

In truth there are many unsettling things that were done with a sense of urgent necessity in the course of the Civil War; things which seem difficult to reconcile with the vision of the man from Springfield.

The latter vision is a myth. Lincoln was a tough political infighter who did what needed to be done, the Constitution be damned, to fulfill his objective of preserving the Union.

But it's plain first that the necessity claimed was legitimate and second that Lincoln was not happy in doing these things, that he did not seek to craft some new imperial order.

You might want to ask the South what they thought about the "War of Northern Aggression."

Mr. Lincoln's goal was to subjugate the South to the government of the Union, which was controlled by the far more populous North. In stark contrast, Mr. Bush's goal and achievement was establishing independent sovereign governments in Afghanistan and Iraq.

Moreover, the hallmark of Lincoln's contribution to this war effort was a vision of humanity and justice, a repudiation of cruelty, and a denunciation of the use of military necessity as a doctrinal justification for excesses (all of which repose in his General Order No. 100 of April 23, 1863, the seminal document of international humanitarian law).

Have you read this document?

I would refer you to the following passages of how Mr. Lincoln ordered the treatment of what we now call unlawful enemy combatants:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

Art. 83.

Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

Art. 84.

Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

In sum, Lincoln ordered captured unlawful enemy combatants to be summarily executed by Union troops. These orders are what you termed as "a vision of humanity and justice, a repudiation of cruelty, and a denunciation of the use of military necessity as a doctrinal justification for excesses..."

In that case, you must surely place Mr. Bush's far more generous treatment of unlawful enemy combatants at Gitmo up there with the works of Mother Theresa and Ghandi.

Time to get real. War is not a game and the Constitution is not a suicide pact.

Perhaps it would do to remember the words of General William Tecumseh Sherman to the politicians of Atlanta: "War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out."

In the application of this truism, Mr. Lincoln was far more ruthless than Mr. Bush.

Go on, Scott, explain article 82. The plain fact is, if you had been alive then, you would have been a copperhead apologist filled with rage against King Lincoln, Abraham Africanus, the Widow-Maker, whatever your friends of that era called him. You know it, I know it, everyone knows it.

I would refer you to the following passages of how Mr. Lincoln ordered the treatment of what we now call unlawful enemy combatants:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

May I point out that highway robbers (as any other alleged criminals) are entitled to a trial?

Lincoln's conduct of the Civil War has been mined many times by those looking for signs of his character and his likely handling of current affairs, both by those who admire him and by those who revile him. May I respectfully suggest that an alternative, less overworked area, to look for such signs would be his handling of the prisoners captured in the Dakota Conflict in 1862.

Arne, may I point out the operative phrase is not, "shall be "tried" as highway robbers or pirates.", but rather "treated summarily" as such? Guilt assumed, get on with the punishment.

While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law.

The Constitution extends a right to trial to criminal defendants, not to wartime combatants.

During wartime, you can legally kill enemy combatants at will. Through nearly all of our history, the United States extended the benefit safe capture to surrendering enemy combatants who followed the laws of war, but not to unlawful enemy combatants, who were usually summarily executed. Mr. Lincoln's orders did not break any new ground in this regard.

For the first time in our history, the military in Vietnam extended POW benefits to VC unlawful enemy combatants in the vain hope that the enemy would recognize our legal combatants as such and extend them POW rights. The Constitution did not compel this change, it was a military decision.

"While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law."

Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law?

I think it's not a suicide pact, in the sense that following it strictly isn't suicidal.

Agreed. Well said.

Arne, may I point out the operative phrase is not, "shall be "tried" as highway robbers or pirates.", but rather "treated summarily" as such? Guilt assumed, get on with the punishment.

It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied.

Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law?

I think Lincoln demonstrated that he cared a great deal about Constitutional law. He made repeated public legal arguments justifying his actions. Now, you may not agree with all of his arguments (I don't), but they were serious arguments.

It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied.

"Summary" proceedings under military justice do not involve trials. For example, a summary courts martial is simply a hearing in front of the commanding officer.

At most, the unlawful enemy combatants which fell under Article 82 would have a summary battlefield hearing before the capturing unit's commanding officer to determine if the capture fell under this definition. If the CO found that the capture did fall under Article 82, the result would be a summary hanging or shooting.

"I think Lincoln demonstrated that he cared a great deal about Constitutional law."

Just not enough to be bound by it? I'm thinking of the occasion when Taney pointed out to him that the Constution gave Congress, not the President, the power to suspend the great writ, and Lincoln's reasoned legal argument was an order for the Chief Justice to be arrested.

"Bart" DePalma trots out the rotten "we can legally summarily execute 'illegal enemy combatants' in wartime if we feel like it, so they ought to kwittheirbitchin and be happy'" tripe once again:

The Constitution extends a right to trial to criminal defendants, not to wartime combatants.

And if they're accused of being criminals, they are entitled to that, be they "wartime combatants or not" (absent legal Congressional suspension of habeas corpus). In any case, they are protected against punishment without trial.

During wartime, you can legally kill enemy combatants at will....

Not quite true. Not if they're in your custody and/or are otherwise rendered hors de combat. Just try it, "Bart", and you may find that you're in a heap'o'legal'trouble.

... Through nearly all of our history, the United States extended the benefit safe capture to surrendering enemy combatants who followed the laws of war, but not to unlawful enemy combatants, who were usually summarily executed.

Yet, here you are, a couple months down the road -- never having addressed the objections of your erstwhile fellow conversationalists (and others besides me were on your case on that thread) -- trotting the "same ol' same ol'" out again.

Proof by repetitive assertion is not very convincing. Particularly when people outright dispute your facts.

Mr. Lincoln's orders did not break any new ground in this regard.

"... shall be treated summarily as highway robbers or pirates."

Hmmmm. Missed the words "and executed" there. Were they hiding under those "M"s?

For the first time in our history, the military in Vietnam extended POW benefits to VC unlawful enemy combatants in the vain hope that the enemy would recognize our legal combatants as such and extend them POW rights. The Constitution did not compel this change, it was a military decision.

Extending POW rights to them is not the same as not carrying out summary sentences, just FWIW. Must be hard work moving the goalposts all over creation.

I think your facts are wrong. As I pointed out in the previous thread on this subject, your very own cite on summary execution history shows that essentially all but one of the incidents listed of such summary executions were done by the Nazis or Imperial Japan. Hardly a model for our legal standards, I'd say ... much as you might wish for it.

[Arne]: While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law."

Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law?

Sorry, I must be tired. Did you have a point here, Brett? Other than to bring up again what I indicated was immaterial to my point (that is to say, Lincoln's opinion on the Constitutionality of various things)? As I indicated, regardless of Lincoln's opinions, "guilt assumed" is antithetical to Western jurisprudence and to the roots of the Constitution. And if I may add, it's ilegal as well.

[Mark Field]: It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied.

"Summary" proceedings under military justice do not involve trials. For example, a summary courts martial is simply a hearing in front of the commanding officer.

At most, the unlawful enemy combatants which fell under Article 82 would have a summary battlefield hearing before the capturing unit's commanding officer to determine if the capture fell under this definition. If the CO found that the capture did fall under Article 82, the result would be a summary hanging or shooting.

Lack of cites duly noted. Assertion as proof. Ignore the other person's question, and just repeat yourself. "Bart"'s favourite MO.

It is a conceit of lawyers that if it isn't "settled law" that the sun rises in the East, you have no basis for complaining about somebody claiming it rises in the West.

As far as I know, the SCOTUS has never decided the issue. While I do agree with you on the conclusion, I'm not convinced it's all that obvious.

Your "colorable argument" boils down to nothing more than, "We don't have to actually follow the Constitution in emergencies."

Well, yeah, that's what the defense of necessity is. The real test is whether there really was "necessity". Lincoln had a pretty decent case for it.

In addition, at least one case, Ex Parte Field (no relation), 9 F. Cas. 1 (C.C.Vt. 1862), upheld Lincoln's power to suspend the writ under the militia clause. Somewhat ironically, perhaps, that court relied in part on Taney's opinion in Luther v. Borden as support for its conclusion. The SCOTUS later reached the same conclusion for a state governor in Moyer v. Peabody.

Which did not retroactively make his action constitutional

I'm not so sure. Congress expressly ratified Lincoln's actions. That may very well legalize it retroactively.

certainly didn't render his order to arrest Taney reasonable.

Agreed, but Taney wasn't actually arrested, so this point loses a lot of its force. We all do things under stress which we wish later we hadn't. I hope never to be under such stress as Lincoln was, but even then he didn't have the order carried out. (I'm assuming that the order was real. There remains some controversy over it, as I understand.)

He merely had the law on his side, and blatently so.

As indicated above, that's not so clear. The sad thing is, that had the judge been anybody but Taney, there might have been a real discussion and resolution of the issue.

Again, so what? The SCOTUS hasn't ruled on the meaning of my wife's grocery list, either, but if she writes "1 gal. Whole milk" and I buy a liter of cream sherry instead, she's still right to be pissed.

The Constution clearly and unambiguously grants to Congress, not the President, the power to suspend habeus. You don't need the SCOTUS to understand that, you need a basic grasp of the English language. The President no more has a "colorable" argument that he's entitled to do it himself, than the Speaker of the House has a "colorable" argument that he's entitled to sign legislation in the place of the President.

I think there's something about a legal education that impairs one's capacity to distinguish reason from sophistry. Maybe because it's not a terribly useful distinction within the legal system, as reliant as that system is on the latter.

Brett: The Constution clearly and unambiguously grants to Congress, not the President, the power to suspend habeus.

Why? Because it's in Article I? There are other parts of Article I that do not apply to Congress--see Section 10. I agree that on the balance the power remains with the Congress, but it's not as crystal clear as you're making it out to be.

I don't need to ask the South what they thought of the "war of northern aggression". The causes and aims they sought to protect rightly belong to the dustbin of history.

But there's still sweeping up left to do.

In all sincerity and appreciation for the differing opinions of others, I cannot understand how one would disagree with what I just said, and still hold as their aim the ennoblement, the enrichment, the freedom, and the dignity of all humankind.

And that is clearly the legacy of Lincoln to which Obama refers. One may legitimately argue about the means by which Lincoln achieved this. One cannot credibly argue with the ultimate results. Nor can one credibly claim the current issues of the day have any potential - either by their own claims or by the standards Lincoln described and adhered to - to achieve any similar success.

The commenters here seem to prefer to argue about angels and pinheads.

I don't need to ask the South what they thought of the "war of northern aggression". The causes and aims they sought to protect rightly belong to the dustbin of history.

But there's still sweeping up left to do.

In all sincerity and appreciation for the differing opinions of others, I cannot understand how one would disagree with what I just said, and still hold as their aim the ennoblement, the enrichment, the freedom, and the dignity of all humankind.

And that is clearly the legacy of Lincoln to which Obama refers. One may legitimately argue about the means by which Lincoln achieved this. One cannot credibly argue with the ultimate results. Nor can one credibly claim the current issues of the day have any potential - either by their own claims or by the standards Lincoln described and adhered to - to achieve any similar success.

The commenters here seem to prefer to argue about angels and pinheads.